Tendering Authority Must Preserve Fairness Of Process When Re-Evaluating Bidder's Eligibility, Can't Simply Reiterate Selection: Calcutta High Court

The Calcutta High Court recently said that when re-evaluating the eligibility of bidders. the tendering authority must preserve fairness of the process and satisfy the benchmark of probity.Setting aside an order passed by the Chittaranjan National Cancer Institute last month, Justice Moushumi Bhattacharya said the tendering authority cannot simply reiterate its earlier decision."In taking a fresh decision, the Institute was bound to preserve the fairness of the process by re-evaluating the eligibility of the private respondent against the specific tender conditions. The Institute was hence required to state, with due regard to the evidence before the tendering authority at the relevant point of time, that the selection was not guided by any extraneous conditions. The impugned order and the Minutes do not satisfy this benchmark of probity. The Institute has instead simply reiterated its selection and sought to gloss over the infirmities in the selection process," said the court.The judgement was passed on a writ petition filed in respect of a tender floated by the Institute for mechanised cleaning services. Reliable Facility Services Private Limited, one of the bidders, in 2020 had filed a petition challenging the award of contract to another bidder. The court on September 21 this year found the selection contrary to the tender requirements and directed the institute to pass a fresh decision. Pertinently, the contract had commenced in February, 2020 and ends on 24.2.2023.Following the court order, the Technical Re-evaluation Committee reiterated its decision, primarily on the ground that selected bidder has experience of working in JSS Hospital which is a 1800-bedded hospital. Reliable Facility Services filed second petition to challenge Institute's order dated November 11. The Court said the dispute, in this second round of litigation between the parties, is whether the Institute justified the decision of awarding the tender to another bidder without due regard to the eligibility criteria in the tender documents. The petitioner argued that another bidder was selected despite failing the required criteria.Justice Bhattacharya said reliance on JSS Hospital documents is misplaced as the fact of it having 800 beds would appear from a document downloaded from the JSS Hospital website."This document can by no means be treated as evidence of the private respondent executing and successfully completing the work of mechanised cleaning services for a Hospital with 500+ beds. The document also shows that the critical and emergency care facility has 260 beds which further lends to the ambiguity of whether the private respondent actually performed similar work for JSS Hospital with 500+ beds in one single contract," said the court.The bench further said reliance on such document would also be contrary to the object of the tender conditions that required the eligible bidders to furnish proof of having performed similar work for a hospital with 500+ beds and also having successfully completed the said work."Second, reliance on the downloaded document also amounts to an admission that the private respondent did not furnish the required documents at the relevant stage of the tender. This would be corroborated from the statements made by the private respondent in the supplementary affidavit filed in the earlier round of litigation," said the court.The court quashed the impugned decision, while ruling that it does not stand the test of transparency which is expected in tender matters.On the point of balance of convenience, the Court noted that the contractor, who was awarded the contract, started work at the institute in February 2020. However, it said the tender itself contemplated that the second ranked bidder - which is the petitioner in this matter, shall be kept in reserve and may step in if the first ranked bidder withdraws or fails to deposit the bank guarantee or meet the other obligations. "The tender conditions also provide that an agreement / work order issued to the preferred bidder will be terminated on a material misrepresentation or false information given by the preferred bidder. The tender conditions hence provide that the second ranked bidder will take the position of the first ranked bidder on the happening of certain events," said the court.The court further said the passage of time between the filing of the earlier writ petition and the impugned order cannot be held against the petitioners if the Institute has not satisfied the expected standard of re-evaluation."The petitioners cannot be at the receiving end or be made to suffer the effect of a work order which has wrongly been issued to the private respondent in disregard of the tender conditions. In other words, an illegality cannot be permitted to continue on the defence of balance of convenience," it added. The bench further noted that High Courts exercising power under Article 226 can issue a writ of mandamus or in the nature of a...

Tendering Authority Must Preserve Fairness Of Process When Re-Evaluating Bidder's Eligibility, Can't Simply Reiterate Selection: Calcutta High Court

SAMRIDDHA SEN

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